Precedent No. 67/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on August 18, 2023, and promulgated under Decision No. 364/QD-CA dated October 1, 2023, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are arguments and rulings in legally effective judgments or decisions of the Court on a specific case, selected by the Council of Justices of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)
A selected precedent must meet the following criteria:
– It has the value of clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, guidelines for handling, and legal norms to be applied in a specific case or expressing equity regarding issues for which there are no specific legal provisions;
– It has standard characteristics;
– It has guidance value for the uniform application of the law in adjudication.
2. Precedent No. 67/2023/AL on the person receiving property in kind when dividing common property
2.1. Source of the precedent
Cassation Decision No. 40/2021/DS-GDT dated June 23, 2021, of the High People’s Court in Hanoi regarding the civil case “Dispute over division of common property” between the plaintiff, Mrs. Nguyen Thi D, and the defendant, Mr. Pham Ngoc H; persons with related rights and obligations including 06 people.
Position of the precedent content:
Paragraphs 2, 3, and 4 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Precedent situation:
In a case involving the division of common property which is house ownership and land use rights, one party is an elderly person who established, managed, and used the house and land stably and for a long time, and has the wish to receive the house and land and pay the value of the remaining part of the property to the other person. The house and land cannot be divided in kind.
– Legal solution:
In this case, the Court must decide to hand over the house and land to the elderly person, and the elderly person must pay the value of the other person’s share of the property to that person.
Legal provisions related to the precedent:
Article 209 and Article 219 of the Civil Code of Vietnam 2015.
Keywords of the precedent:
“Elderly person”; “Division of common property”; “Payment of value”.
CASE CONTENT:
According to the lawsuit petition dated January 12, 2020, and during the case resolution process, the plaintiff Mrs. Nguyen Thi D (represented by Mrs. Pham Thi Hai Y) presented:
The couple Mr. Pham Ngoc T (died in 2014) and Mrs. Nguyen Thi D had 05 common children: Mrs. Pham Thi Lan A, Mrs. Pham Thi Hai Y, Mrs. Pham Thi T1, Mrs. Pham Thi T2, and Mr. Pham Ngoc T3 (died in 2005). Mr. T3 had a son, Mr. Pham Ngoc H.
Mrs. D and Mr. T established land plot No. 57-2, map sheet No. 34, with an area of 62.68m2 for private use and 21.3m2 for common use, located at Group 1, B hamlet, V town, X district, Hanoi city, which was granted a Land Use Rights Certificate in 2005 in the names of Mr. Pham Ngoc T and Mrs. Nguyen Thi D; on the land, there is a two-story house.
On March 12, 2012, at Notary Office M, Mr. T and Mrs. D made a joint will with the content of giving their grandson, Mr. Pham Ngoc H (son of Mr. Pham Ngoc T3), full rights to use and transfer the name of the house and land property mentioned above of the two elderly persons.
After Mr. T died, on October 26, 2019, at Notary Office Q, Mrs. D and Mr. H established an Inheritance Division Agreement with the content that Mr. Pham Ngoc H would enjoy the entire inheritance left by Mr. T; Mrs. D and Mr. H are co-owners and co-users of the house and land area. On November 14, 2019, Mrs. D and Mr. H were granted a Certificate of Land Use Rights, House Ownership, and Other Assets Attached to Land for an area of 84m2 of land (including 62.7m2 for private use and 21.3m2 of common alleyway), plot No. 57-2, map sheet No. 33, in the names of Mrs. D and Mr. H.
Mrs. D filed a lawsuit requesting the division of common property between her and Mr. H; she proposed to use the house and land and pay Mr. H the property value of 1,400,000,000 VND. If Mr. H disagreed, she requested the Court to resolve based on the price determined by the Appraisal Council, which was 40,000,000 VND/m2 of land.
The defendant, Mr. Pham Ngoc H, presented: Mrs. D and his family are currently living together in this house and land. He determined that the land plot cannot be divided in kind; he wished to receive the house and land and pay Mrs. D the amount of 1,500,000,000 VND. If Mrs. D wanted to receive the house and land, she would have to pay him at a price of 75,000,000 VND/m2, equivalent to 2,325,000,000 VND.
The persons with related rights and obligations, Mrs. Pham Thi Lan A, Mrs. Pham Thi Hai Y, Mrs. Pham Thi T1, and Mrs. Pham Thi T2, consistently presented: They are no longer related to the disputed property and requested the Court to resolve according to the law, ensuring Mrs. D has a place to live and a place to worship Mr. T.
In First Instance Civil Judgment No. 24/2020/DS-ST dated July 22, 2020, the People’s Court of Thanh Tri District, Hanoi City decided:
1. Accept the lawsuit request of Mrs. Nguyen Thi D against Mr. Pham Ngoc H.
Determine the common property of Mrs. Nguyen Thi D and Mr. Pham Ngoc H as the land use rights and assets attached to land at plot No. 57-2, map sheet No. 33, address at Group 1, B hamlet, V town, X district, Hanoi city, with a total value of 2,780,396,830 VND. Mrs. D and Mr. H each have ownership rights to 1/2 of the common property valued at 1,390,198,415 VND.
Divide the common property of Mrs. D and Mr. H as follows: Hand over to Mrs. D the ownership and use of the entire house and land at plot No. 57-2, map sheet No. 33, address at Group 1, B hamlet, V town, X district, Hanoi city (with a sketch of the current status of the house and land attached to the judgment). Mrs. D is obligated to pay Mr. H 1/2 of the common property value, which is 1,390,198,415 VND.
Additionally, the first instance court also ruled on court fees and the right to appeal.
After the first instance trial, Mr. Pham Ngoc H filed an appeal against the entire first instance judgment.
During the appellate process, Mr. H still requested to receive the house and land and expressed his wish for Mrs. D to live with his family until she passed away.
In Appellate Civil Judgment No. 438/2020/DS-PT dated November 24, 2020, the People’s Court of Hanoi City decided:
Accept the appeal request of Mr. Pham Ngoc H.
Amend First Instance Civil Judgment No. 24/2020/DS-ST dated July 22, 2020, of the People’s Court of Thanh Tri District, specifically as follows:
1. Accept the lawsuit request of Mrs. Nguyen Thi D against Mr. Pham Ngoc H.
2. Determine the common property of Mrs. Nguyen Thi D and Mr. Pham Ngoc H as the land use rights and assets attached to land at plot No. 57-2, map sheet No. 33, address at Group 1, B hamlet, V town, X district, Hanoi city, with an area of 84m2, including 62.7m2 for private use and 21.3m2 for common alleyway, with a total value of 2,780,396,830 VND. Mrs. D and Mr. H each have ownership and use rights to 1/2 of the common property valued at 1,390,198,415 VND.
3. Divide the common property of Mrs. Nguyen Thi D and Mr. Pham Ngoc H specifically as follows:
Mr. Pham Ngoc H is granted ownership and use of the entire house and land at plot No. 57-2, map sheet No. 33, address at Group 1, B hamlet, V town, X district, Hanoi city (according to the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to Land No. CS 939809 dated November 14, 2019, issued by the Department of Natural Resources and Environment of Hanoi City in the names of Mrs. Nguyen Thi D and Mr. Pham Ngoc H).
Mr. Pham Ngoc H is obligated to pay Mrs. Nguyen Thi D 1/2 of the common property value, which is 1,390,198,415 VND.
Mr. Pham Ngoc H has the right and obligation to contact the competent State agencies to carry out procedures for adjusting (or exchanging, re-issuing) the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to Land for the divided property mentioned above according to the law.
Acknowledge the voluntariness of Mr. Pham Ngoc H and Ms. Nguyen Thi Thanh T4 to continue allowing Mrs. Nguyen Thi D to use the house at Group 1, B hamlet, V town, X district, Hanoi city until she passes away.
Additionally, the appellate court also decided on court fees and responsibility for delayed judgment execution.
In Cassation Protest Decision No. 10/QDKNGDT-VKS-DS dated February 1, 2021, the Prosecutor General of the High People’s Procuracy in Hanoi protested against Appellate Civil Judgment No. 438/2020/DS-PT dated November 24, 2020, of the People’s Court of Hanoi City; proposed that the Judges’ Council of the High People’s Court in Hanoi conduct a cassation trial towards canceling the aforementioned appellate civil judgment and upholding First Instance Civil Judgment No. 24/2020/DS-ST dated July 22, 2020, of the People’s Court of Thanh Tri District, Hanoi City.
At the cassation hearing, the representative of the High People’s Procuracy in Hanoi proposed that the Judges’ Council of the High People’s Court in Hanoi accept the protest of the Prosecutor General of the High People’s Procuracy in Hanoi.
COURT’S ASSESSMENT:
[1] The house and land at plot No. 57-2, map sheet No. 33, Group 1, B hamlet, V town, X district, Hanoi city originated from the couple Mr. Pham Ngoc T and Mrs. Nguyen Thi D, and was granted a Land Use Rights Certificate by the People’s Committee of Thanh Tri District in 2005 with an area of 62.68m2 for private use and 21.3m2 for common use in the names of Mr. T and Mrs. D.
[2] On March 12, 2012, at Notary Office M, Mr. T and Mrs. D made a joint will with the content of giving their grandson, Mr. Pham Ngoc H (the grandson of the two elderly persons), full rights to use and transfer the name of the aforementioned house and land property. After Mr. T died, on October 26, 2019, at Notary Office Q, Mrs. D and Mr. H established an Inheritance Division Agreement with the content that Mr. H would enjoy the entire inheritance left by Mr. T; Mrs. D and Mr. H are co-owners and co-users of this house and land area and were granted a Certificate of Land Use Rights, House Ownership, and Other Assets Attached to Land for an area of 84m2, including 62.7m2 for private use (actual measurement is 66.6m2) and 21.3m2 of common alleyway (actual measurement is 22.2m2), plot No. 57-2, map sheet No. 33 in the names of Mrs. D and Mr. H.
[3] According to the Minutes of on-site inspection and assessment dated May 14, 2020, the private use land area of plot No. 57-2 has a width adjacent to the common alley of 3.56m; the width at the back is 3.67m; on the land, there is a 2.5-story house and a level 4 house. According to Document No. 1101/UBND-TTPTQĐ dated June 3, 2020, the People’s Committee of Thanh Tri District determined that 11.2m2 of plot No. 57-2 was recovered, leaving a remaining usable area of 55.0m2.
[4] During the process of resolving the case, both Mrs. D and Mr. H expressed the wish to receive the house and land and pay the value to each other. However, the house and land area originated from what the couple Mrs. D and Mr. T established and they had lived on the land since 1980; after Mr. T died, Mrs. D continued to manage, use, and worship Mr. T; in 2016, Mr. H only moved in to live with Mrs. D and did not establish any assets on the land. Mrs. D argued that, in reality, she and Mr. H could not continue living in the same house, so she wished to receive the house and pay Mr. H; the children of Mrs. D and Mr. T, namely Mrs. Pham Thi Lan A, Mrs. Pham Thi Hai Y, Mrs. Pham Thi T1, and Mrs. Pham Thi T2, requested to hand over the house and land to Mrs. D so she has a place to live and a place to worship Mr. T until she passes away. Considering that Mrs. D is elderly and weak, with limitations in changing or establishing another residence, handing over the house and land to Mrs. D for ownership and use, and Mrs. D paying Mr. H the amount of 1,390,198,415 VND as decided by the First Instance Court, is consistent with the origin and process of formation of the common property. Mr. Pham Ngoc H’s receipt of 1/2 of the value of the aforementioned common property is sufficient to establish a new residence.
[5] Thus, there are grounds to partially accept the protest towards amending Appellate Civil Judgment No. 438/2020/DS-PT dated November 24, 2020, of the People’s Court of Hanoi City.
For these reasons;
DECISION:
Pursuant to point a, clause 1, Article 337, Article 342, and clause 5, Article 343 of the Civil Procedure Code.
Partially accept the protest of the Prosecutor General of the High People’s Procuracy in Hanoi. Amend the entire Appellate Civil Judgment No. 438/2020/DS-PT dated November 24, 2020, of the People’s Court of Hanoi City regarding the case “Dispute over division of common property” between the plaintiff Mrs. Nguyen Thi D and the defendant Mr. Pham Ngoc H, specifically as follows:
1. Accept the lawsuit request of Mrs. Nguyen Thi D against Mr. Pham Ngoc H.
2. Determine the common property of Mrs. Nguyen Thi D and Mr. Pham Ngoc H as the land use rights and assets attached to land at plot No. 57-2, map sheet No. 33, address at Group 1, B hamlet, V town, X district, Hanoi city, area 84m2, including 62.7m2 for private use and 21.3m2 for common alleyway, with a total value of 2,780,396,830 VND. Mrs. D and Mr. H each have ownership and use rights to 1/2 of the common property valued at 1,390,198,415 VND.
3. Divide the common property of Mrs. Nguyen Thi D and Mr. Pham Ngoc H, specifically as follows:
Mrs. Nguyen Thi D is granted ownership and use of the entire house and land at plot No. 57-2, map sheet No. 33, address at Group 1, B hamlet, V town, X district, Hanoi city (according to the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to Land No. CS 939809 dated November 14, 2019, issued by the Department of Natural Resources and Environment of Hanoi City in the names of Mrs. Nguyen Thi D and Mr. Pham Ngoc H).
Mrs. Nguyen Thi D is obligated to pay Mr. Pham Ngoc H 1/2 of the common property value, which is 1,390,198,415 VND (One billion, three hundred ninety million, one hundred ninety-eight thousand, four hundred fifteen dong).
Mrs. Nguyen Thi D has the right and obligation to contact the competent State agencies to carry out procedures for adjusting (or exchanging, re-issuing) the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to Land for the divided property mentioned above according to the law.
From the date of the request for judgment execution by the judgment creditor until all sums are fully paid, the judgment debtor shall also bear monthly interest on the outstanding judgment amount according to the interest rate specified in Article 357 of the Civil Code 2015.
4. Court fees: Mrs. Nguyen Thi D is exempted from first instance civil court fees and does not have to bear appellate civil court fees. Mr. Pham Ngoc H must bear first instance civil court fees in the amount of 53,700,000 VND (Fifty-three million, seven hundred thousand dong), which is deducted from the court fee advance Mr. H already paid of 300,000 VND (Three hundred thousand dong) according to Receipt No. 06808 dated August 5, 2020, of the Civil Judgment Execution Bureau of Thanh Tri District; he must still pay an amount of 53,400,000 VND (Fifty-three million, four hundred thousand dong).
The cassation decision takes legal effect from the date the Cassation Council issues the decision.
PRECEDENT CONTENT
“[2] On March 12, 2012, at Notary Office M, Mr. T and Mrs. D made a joint will with the content of giving their grandson, Mr. Pham Ngoc H (the grandson of the two elderly persons), full rights to use and transfer the name of the aforementioned house and land property. After Mr. T died, on October 26, 2019, at Notary Office Q, Mrs. D and Mr. H established an Inheritance Division Agreement with the content that Mr. H would enjoy the entire inheritance left by Mr. T; Mrs. D and Mr. H are co-owners and co-users of this house and land area and were granted a Certificate of Land Use Rights, House Ownership, and Other Assets Attached to Land for an area of 84m2, including 62.7m2 for private use (actual measurement is 66.6m2) and 21.3m2 of common alleyway (actual measurement is 22.2m2), plot No. 57-2, map sheet No. 33 in the names of Mrs. D and Mr. H.
[3] According to the Minutes of on-site inspection and assessment dated May 14, 2020, the private use land area of plot No. 57-2 has a width adjacent to the common alley of 3.56m; the width at the back is 3.67m; on the land, there is a 2.5-story house and a level 4 house. According to Document No. 1101/UBND-TTPTQĐ dated June 3, 2020, the People’s Committee of Thanh Tri District determined that 11.2m2 of plot No. 57-2 was recovered, leaving a remaining usable area of 55.0m2.
[4] During the process of resolving the case, both Mrs. D and Mr. H expressed the wish to receive the house and land and pay the value to each other. However, the house and land area originated from what the couple Mrs. D and Mr. T established and they had lived on the land since 1980; after Mr. T died, Mrs. D continued to manage, use, and worship Mr. T; in 2016, Mr. H only moved in to live with Mrs. D and did not establish any assets on the land. Mrs. D argued that, in reality, she and Mr. H could not continue living in the same house, so she wished to receive the house and pay Mr. H; the children of Mrs. D and Mr. T, namely Mrs. Pham Thi Lan A, Mrs. Pham Thi Hai Y, Mrs. Pham Thi T1, and Mrs. Pham Thi T2, requested to hand over the house and land to Mrs. D so she has a place to live and a place to worship Mr. T until she passes away. Considering that Mrs. D is elderly and weak, with limitations in changing or establishing another residence, handing over the house and land to Mrs. D for ownership and use, and Mrs. D paying Mr. H the amount of 1,390,198,415 VND as decided by the First Instance Court, is consistent with the origin and process of formation of the common property. Mr. Pham Ngoc H’s receipt of 1/2 of the value of the aforementioned common property is sufficient to establish a new residence.”
